Orrin Kerr reviews today's Ninth Circuit holding:
In a divided opinion today by Judge Trott, joined by Judge O’Scannlain, United States v. Nosal, the Ninth Circuit held that “an employee ‘exceeds authorized access’ under § 1030 when he or she violates the employer’s computer access restrictions — including use restrictions.” From the opinion:
Korn/Ferry employees were subject to a computer use policy that placed clear and conspicuous restrictions on the employees’ access both to the system in general and to the Searcher database in particular. . . . . For this reason, we conclude that the rule of lenity, which applied with particular force in interpreting the phrase “without authorization,” does not support ignoring the statutory language and the core rationale of Brekka.
Nosal’s argument that the government’s “Orwellian” interpretation would improperly criminalize certain actions depending only on the vagaries and whims of the employer is foreclosed by Brekka, which held unequivocally that under § 1030 the employer determines whether an employee is authorized. Therefore, as long as the employee has knowledge of the employer’s limitations on that authorization, the employee “exceeds authorized access” when the employee violates those limitations. It is as simple as that.
If you've ever seen the breath and scope of employer computer use restritions, there is a lot of federal criminal activity out there.
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